General meeting annulment: the anti-litigation checklist for building managers

Article 3.92, §3, of the co-ownership law provides that any co-owner may ask the judge to annul or reform a decision of the general meeting when it is irregular, fraudulent or abusive, provided it causes them personal prejudice. This requirement clearly aims to discourage abusive appeals brought by litigious co-owners. Still, it is necessary to understand how this personal prejudice can be established. A tour for building managers wishing to shield their AGMs.

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The general rule: personal prejudice required

Article 3.92, §3 is clear on the principle: no personal prejudice, no annulment. But this rule applies with important nuances depending on the nature of the irregularity invoked.

Cases where personal prejudice is obvious

In some situations, demonstrating personal prejudice presents little difficulty. This is the case, in particular:

• When the individual accounts of a co-owner are erroneous and form the basis of a decision imposed on them (for example a charges statement incorporating errors to the disadvantage of the co-owner concerned)
• When a decision imposes on them charges which, in their view, are actually the co-ownership's responsibility (private charges wrongly recharacterised as common charges to their account)

In these hypotheses, the co-owner easily demonstrates an interest in acting, since the decision directly affects their personal situation. There is no debate.

Let us recall in this regard that decisions of the general meeting are sovereign, and that a late challenge, especially after the expiry of the 4-month deadline, is in principle inadmissible.

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More delicate situations: formal irregularities

The question becomes more complex when the irregularity affects not a particular co-owner, but the entire group of co-owners. It is in these grey zones that case law shapes the real scope of Article 3.92, §3.

Case No. 1: failure to provide prior information (JJP 7-8/2023, p. 274)

A decision of the justice of the peace (JJP 7-8/2023, p. 274) addresses the consequences of failing to respect a clear obligation: the indication, in the notice, of the arrangements for consulting the documents relating to the items on the agenda.

The court notes that this failure generates, at the very least, moral prejudice, and that the only possible remedy consists in annulling the general meeting.

It could also have specified that the right to consult documents, in the name of the transparency essential to the functioning of the general meeting, is so fundamental that its violation necessarily entails prejudice.

Indeed, each co-owner must be able to know how and when they can exercise their right of control. It ultimately matters little whether that control would have influenced the decision taken or not: the prejudice lies in the very impossibility of verifying.

However, this prejudice appears more collective than truly personal, hence the legal tension we address below.

Case No. 2: irregular or late minutes (Ixelles, 19 November 2020)

Another interesting decision, rendered by the justice of the peace of Ixelles on 19 November 2020 (RCDI 2021, p. 34), concerns minutes:

• Not drawn up in session
• Transmitted in their final version three months after the meeting

The court considers that:

• The minutes do not respect the legal formalities
• The decision to give them probative force violates the law
• The general meeting must therefore be annulled in its entirety

The fact that the building manager's computer was out of battery and unusable was not accepted as force majeure, since minutes could perfectly well have been drafted by hand.

Here again, the prejudice is inferred from the risk that the minutes do not faithfully reflect the decisions taken. It is therefore a potential prejudice, but difficult to attach to any particular co-owner.

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An apparent contradiction in the legal text

These situations highlight an interpretation difficulty:

• The law requires personal prejudice
• But some irregularities affect the entire group of co-owners

Should one consider that:

• The collective prejudice is therefore insufficient?
• Or that it "breaks down" into a multitude of "possible" individual prejudices?

An interpretation path: public order

It could be argued that the co-ownership law is of public order. As a result, the provisions it contains, particularly on transparency, information and formalities, are essential to the proper functioning of the co-ownership.

In this perspective: the violation of these rules necessarily affects each co-owner individually.

The prejudice, although collective in its effects, would thus become personal in its principle, since each one is deprived of a fundamental right.

Legal conclusion

The notion of personal prejudice, required by Article 3.92, §3, should not be interpreted too restrictively. In the presence of violations of essential rules set out in the co-ownership law:

• The prejudice may be moral
• Potential
• And even shared by all

Without thereby preventing the annulment of the general meeting.

Building managers, be vigilant and respect each of the rules set out in the law.

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The anti-annulment checklist: 3 stages, 3 watchpoints

A. Before the general meeting

Notice:

• Sent within the legal deadlines (minimum 15 days unless urgent)
• Sent to all co-owners (and usufructuaries if applicable)
• Compliant sending mode (registered post, possibly by email if prior agreed authorisation)

Agenda:

• Clear, precise, unambiguous
• No "fuzzy" item: avoid "miscellaneous" decisions
• All items submitted to a vote are explicitly mentioned

Documents:

• All documents relating to the items are available BEFORE the AGM
• The notice specifies:
  • WHERE to consult the documents
  • WHEN
  • HOW (on site, online, copy)
  • Real access (not fictitious or abusively limited)

Right of co-owners:

• Co-owners have been able to propose items on the agenda
• Requests received have been properly integrated

B. During the general meeting

Attendance and proxies:

• Attendance list signed
• Verification of proxies (validity + limits)
• Correct calculation of shares

Majorities:

• Verification of legal majorities for each decision
• Distinction respected:
  • Simple majority
  • Qualified majority (2/3, 4/5, etc.)
  • Unanimity if necessary

Votes:

• Votes clearly expressed
• Quantified results (for/against/abstentions)
• No decision outside the agenda

Minutes (critical point):

• Drafted during the session
• Faithfully reflecting the decisions
• Mention:
  • Voting results
  • Any reservations
  • Signed in session (chair, secretary, designated co-owners)

C. After the general meeting

Transmission of the minutes:

• Sent within legal deadlines (generally 30 days)
• Sent to all co-owners

Conservation:

• Secure archiving
• Documents accessible in case of dispute

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Common errors to avoid (classic causes of annulment)

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In conclusion: transparency as a reflex

This analysis synthesises the observations of Pierre Rousseaux, lawyer at the Charleroi bar. The central message for building managers, professional or volunteer: Belgian case law tends to interpret more and more broadly the notion of personal prejudice in matters of AGM annulment. A violation of the essential rules of transparency and procedure may be enough to have a meeting annulled, even without proof of individualised prejudice.

The remedy is simple: procedural rigour. An AGM that is well prepared, where the notice contains all the legal mentions, where the documents are accessible, where the minutes are drafted and signed in session, is almost unchallengeable. It is in respect for detail that the legal security of the co-ownership is at stake.

For further reading, see also our article on the volunteer building manager and the practical guide to the transition, procedural rigour is all the more critical when one does not have a professional's experience.

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